Citation Nr: 0917295
Decision Date: 05/08/09 Archive Date: 05/19/09
DOCKET NO. 06-03 516A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in White River Junction, Vermont
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for right
patellofemoral syndrome.
2. Entitlement to a rating in excess of 20 percent for left
patellofemoral syndrome.
REPRESENTATION
Appellant represented by: Vermont Veterans Affairs
Section, Military Department
ATTORNEY FOR THE BOARD
J. W. Kim, Counsel
INTRODUCTION
The Veteran had active service from November 1967 to November
1973, and from January to July 1991.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a July 2005 rating decision in which
the RO, inter alia, increased the ratings for patellofemoral
syndrome affecting the lower extremities to 10 percent, each,
effective March 15, 2005 (date of claim for increase). The
Veteran filed a notice of disagreement (NOD) in August 2005,
and the RO issued a statement of the case (SOC) in December
2005. The Veteran filed a substantive appeal (via a VA Form
9, Appeal to Board of Veterans' Appeals) in February 2006.
In a March 2008 rating decision, the RO increased the ratings
for his knee disabilities to 20 percent, each, effective
March 15, 2005. As higher ratings for the Veteran's knee
disabilities are available, and the Veteran is presumed to
seek the maximum available benefit for a disability, the
claims for higher ratings remain viable on appeal. See AB v.
Brown, 6 Vet. App. 35, 38 (1993).
In a December 2008 letter, the Veteran was informed that he
was scheduled for a Board hearing at the RO in January 2009.
However, the record indicates that the Veteran failed to
report to this hearing.
For the reasons expressed below, the matters on appeal are
being remanded to the RO via the Appeals Management Center
(AMC) in Washington, DC. VA will notify the Veteran when
further action, on his part, is required.
REMAND
The Board's review of the claims file reveals that further RO
action on the claims on appeal is warranted.
Although the RO provided the Veteran with the March 2008
rating decision, in which it increased the ratings for his
knee disabilities to 20 percent, each, as that was not a
complete grant of benefits, the RO should have furnished the
Veteran a supplemental SOC (SSOC) on the claims. See 38
C.F.R. § 19.31 (2008); see also AB, 6 Vet. App. at 38.
While, in rating decision, the RO referenced an October 2007
letter from the Veteran's representative, stating that the
Veteran was seeking a rating of not less than 20 percent for
each knee in determining that the grant of the 20 percent
rating for each knee disability was a full grant of benefits
sought on appeal, the Board disagrees. The representative
clearly indicated that the Veteran sought at least a 20
percent rating for each knee, not that such minimum rating
would satisfy the appeal..
The Board also observes that, after the issuance of the
December 2005 SOC, but prior to the certification of the
appeal to the Board, additional pertinent evidence-the
report of a November 2007 VA examination-was added to the
record; however, but there is no SSOC reflecting RO
consideration of this evidence, in the first instance.
Under these circumstances, the Board has no alternative but
to remand these matters to the RO for consideration of these
claims in light of the additional evidence received since the
issuance of the December 2005 SSOC, and for issuance of an
SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31,
19.37 (2008).
Further, to ensure that all due process requirements are met,
while these matters are on remand, the RO should give the
Veteran another opportunity to present information and/or
evidence pertinent to the claims on appeal. The RO's notice
letter to the Veteran should explain that he has a full one-
year period for response. See 38 U.S.C.A § 5103(b)(1) (West
2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2008)
(amending the relevant statute to clarify that VA may make a
decision on a claim before the expiration of the one-year
notice period). The RO should also ensure that its notice to
the Veteran meets the requirements Vazquez-Flores v. Peake,
22 Vet. App. 37 (2008) (setting forth the minimum notice
requirements for claims for increased ratings), as
appropriate.
In Vazquez-Flores, the United States Court of Appeals for
Veterans Claims (Court) found that, at a minimum, adequate
VCAA notice requires that VA notify the claimant that, to
substantiate an increased rating claim: (1) the claimant must
provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life; (2) if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increased
compensation.
After providing the appropriate notice, the RO should attempt
to obtain any additional evidence for which the Veteran
provides sufficient information, and, if needed,
authorization, following the current procedures prescribed in
38 C.F.R. § 3.159 (2008).
The actions identified herein are consistent with the duties
to notify and assist imposed by the Veterans Claims
Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103,
5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159. However,
identification of specific actions requested on remand does
not relieve the RO of the responsibility to ensure full VCAA
compliance. Hence, in addition to the actions requested
above, the RO should also undertake any other development or
notification action deemed warranted by the VCAA prior to
adjudicating the claims on appeal.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following actions:
1. The RO should send to the Veteran and
his representative a letter requesting
that the Veteran provide sufficient
information, and, if necessary,
authorization, to enable it to obtain any
additional evidence pertinent to the
claims on appeal.
The RO should explain the type of evidence
that is the Veteran's ultimate
responsibility to submit. The RO should
also ensure that its letter meets the
requirements of Vazquez-Flores (cited to
above), as appropriate.
The RO's letter should clearly explain to
the Veteran that he has a full one-year
period to respond (although VA may decide
the claim within the one-year period).
2. If the Veteran responds, the RO should
assist him in obtaining any additional
evidence identified by following the
current procedures set forth in 38 C.F.R.
§ 3.159. All records and/or responses
received should be associated with the
claims file. If any records sought are
not obtained, the RO should notify the
Veteran and his representative of the
records that were not obtained, explain
the efforts taken to obtain them, and
describe further action to be taken.
3. To help avoid future remand, the RO
must ensure that all requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
4. After completing the requested
actions, and any additional notification
and development deemed warranted, the RO
should readjudicate the claims on appeal
in light of all pertinent evidence (to
include all additional evidence added to
the record since the issuance of the
December 2005 SOC) and legal authority.
5. If any benefit sought on appeal
remains denied, the RO must furnish to the
Veteran and his representative an
appropriate SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims file
is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The Veteran need take
no action until otherwise notified, but he may furnish
additional evidence and argument during the appropriate time
frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999);
Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown,
8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2008).